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Congress has blocked attempts to increase the maximums OSHA can charge for violations. But a Labor and Employment lawyer recently noted that the agency is taking steps unilaterally to up penalties. Nina Stillman, an attorney with Morgan Lewis in Chicago, told attendees at the Society for Human Resource Management (SHRM) annual conference that OSHA has increased fines by:
- Lengthening its look-back period for other violations from three to five years
- Increasing the minimum for a serious violation to $500, and
- Limiting OSHA area directors’ discretion to offer penalty reductions.
In 2009, the average OSHA penalty after an inspection was $1,000. Last year that rose to $2,000, and the agency eventually wants it to increase to $3,500.
Stillman says the biggest way OSHA has increased penalties is through the use of repeat citations. OSHA “is doing repeats all over the place,” she said at SHRM.
Repeat violations can be up to ten times as much as a serious citation. Maximum for a serious citation is $7,000. Repeats top out at $70,000.
The definition of a repeat violation has also expanded. A previous violation at another location owned by the company now triggers repeat status.
OSHA penalties may be low compared to other federal regulatory agencies, but cooperation among those agencies can add up to a larger total penalty.
Stillman mentioned a case in which a tank of sulfuric acid exploded at the Motiva Enterprises oil refinery in Delaware. It killed a worker, Jeff Davis, whose body was dissolved in the acid.
However, the OSHA fine was only $175,000. The EPA was able to issue a $10 million fine for the same incident under the Clean Water Act because of the death of fish and crabs.
For companies that can afford it, it’s often more cost effective to fight an OSHA citation. It’s not because of the fines; it’s because the abatement that OSHA can order is way more expensive.
Stillman recalled a case she worked on. OSHA wanted a company to slow down its production lines, which would have cost $5 million a year. “I was told to litigate the case ’til the cows come home,” she said.
Are OSHA fines large enough to act as a deterrent? Let us know what you think in the comments below.